Opinion
19-P-23
12-17-2019
COMMONWEALTH v. Brian F. AHEARN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Superior Court, a jury convicted the defendant, Brian F. Ahearn, of larceny in a building and carrying a dangerous weapon. On appeal, he contends that the judge (1) abused his discretion in denying his request to continue the trial, and (2) demonstrated bias and lack of impartiality at trial and sentencing. We affirm.
The jury acquitted the defendant on a count of breaking and entering in the daytime with intent to commit a felony, and two counts of carrying a dangerous weapon.
Background. Lindsay Wan and her fiancée, Christopher Chicoine, resided in an apartment unit located on L Street in Turners Falls. On November 3, 2016, the landlord of the property went to the apartment to perform repairs. When he was done, as neither Wan nor Chicoine were home, the landlord secured the door and left. Less than ten minutes later, the landlord returned after receiving a telephone call from the downstairs tenant. The landlord noticed that the door to the same apartment was not in the same condition, as it "was open, ajar, slightly ajar," and "the screws on the latch side of the door had been unscrewed." The landlord knocked on the door, and the defendant exited the apartment. The landlord saw "what appeared to be rifles or weapons wrapped in a blanket" in the defendant's hands. The landlord testified that the defendant identified himself as "Bernie Ahearn." The landlord did not try to stop the defendant, as he had never seen the defendant before and was nervous. After the defendant left the area, the landlord called 911. An officer arrived within a few minutes, and the landlord described to him what he had just seen. The landlord subsequently identified the defendant, from a photograph on the police officer's cell phone, as the man he had seen exiting the building.
Chicoine was held in jail at the time, and Wan was staying at her mother's home.
Approximately forty minutes later, the officer who initially met with the landlord located the defendant about one-half mile away from the apartment. The defendant threw down his backpack, and, upon command of the officer, dropped an unopened switchblade knife on the ground. The officer arrested the defendant. Following an inventory search of the backpack, officers recovered brass knuckles and a fixed blade double-edged knife.
The defendant testified at trial, and claimed that he entered the apartment and took some of the items therein because he knew that Wan and Chicoine were away, and he intended to safeguard or sell their property for them. He further testified that he did not know that the backpack contained brass knuckles or a double-edged knife, and that he buried the rifles under some leaves in a nearby park. Wan and Chicoine testified that they did not give the defendant permission to enter the apartment or take any of the items therein.
Police officers located the rifles in the park. The rifles were determined to be "air rifles."
Discussion. 1. Motion to continue trial. The defendant contends that the judge abused his discretion in denying defense counsel's verbal request for a continuance sought on the morning of jury empanelment. Specifically, defense counsel objected to moving forward with trial that morning because the defendant was allegedly hospitalized the prior evening. The judge, noting that the case had been on the trial list five times, accepted the prosecutor's suggestion to empanel the jury and "[s]ee how [the defendant is] feeling [the next] morning before the jury's sworn." The judge stated that this approach would "give [the defendant] the chance to obtain more information and to receive whatever treatment he need[ed] to receive." Far from objecting to the judge's solution, defense counsel thanked the judge for the accommodation. Defense counsel did not renew her motion to continue on either of the subsequent two days of trial. Although she stated that she had concerns about the defendant, prior to his testimony on day three of trial, defense counsel did not renew her motion to continue. Furthermore, following the defendant's testimony, the judge found on the record, among other things, that he observed the defendant while he testified; that the defendant's answers were coherent; that the defendant "spoke up and his voice was strong" at appropriate times; and that the judge perceived nothing that gave him any concern that the defendant "was in a state that [the trial] should not have gone forward."
Defense counsel stated that the defendant had suffered a second degree burn and a "yet undiagnosed viral illness."
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On this record, we discern no abuse of discretion in the denial of the motion to continue the trial. First, the judge held off on taking evidence and gave the defendant what he sought -- time to address any health issues. In the absence of further objection or renewal of the motion to continue, there was no reason to further delay the trial. Even assuming that the defendant preserved the issue for appeal, the judge "balance[d] the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted," and "also g[a]ve due weight to the interest of the judicial system in avoiding delays which would not measurably contribute to the resolution of a particular controversy." Commonwealth v. Gilchrest, 364 Mass. 272, 276-277 (1973). In the circumstances of this case, the judge's decision to empanel the jury, continue the case until the following day, and proceed with trial was reasonable, nonprejudicial, and consistent with due process. Cf. Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976) (facts relied on by judge in denying motion for continuance were substantially and materially erroneous). There was no abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
2. Judicial bias. There is no merit to the defendant's claim that the judge displayed bias at trial and sentencing. Insofar as the defendant limits his bias at trial argument to the judge's refusal to allow the motion to continue, the claim is unavailing for the reasons delineated above. As to the bias at sentencing argument, the judge properly and reasonably considered the defendant's criminal history and seriousness of the offense in crafting a sentence within the range provided by statute. See Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993) ("A judge has considerable latitude within the framework of the applicable statute to determine the appropriate individualized sentence"). There was no error or abuse of discretion. See L.L., 470 Mass. at 185 n.27.
Judgments affirmed.